' This petition has been filed under Article 199 of the Constitution of Islamic Republic of Pakistan, 1973 calling in question the order, dated 26-5-1994 passed by the learned District and Sessions Judge, Lahore whereby the part heard case of F.I.R. No,501, dated 11-11-1990 registered under section 302, P.P.C. At Police Station, North Cantt. Was transferred to the Court of Mr. Muhammad Siddique Girwa, Additional Sessions Judge, Lahore.
2. The facts of the case, in brief, are that the learned Sessions Judge, Lahore entrusted the murder case F.I.R. No,501, dated 11-11-1990 under section 302, P.P.C. Registered at Police Station, North Cantt.
To the Court of Mr. Khadim Hussain Malik, Additional Sessions Judge, Lahore. The abovesaid learned Additional Sessions Judge, commenced the hearing of the case and after framing the usual charge 'recorded the evidence of two witnesses. Thereafter, he was transferred from his post as Additional Sessions Judge leaving the said murder case as a part hegd. No substitute was posted in place of outgoing Additional Sessions Judge, Mr. Khadim Hussain Malik. On the transfer of the abovesaid learned Additional Sessions Judge, Mr. Muhammad Siddique Girwa, was transferred to cover the charge against an existing vacancy and not as his substitute. The learned District and Sessions Judge, Lahore transferred the abovesaid part heard murder case to another Additional Sessions Judge, Mr. Muhammad Siddique Girwa, who was posted not in place of Mr. Khadim Hussain Malik but against an already existing vacancy. The learned Additional Sessions Judge, Mr. Muhammad Siddique Girwa wrote a letter addressing the Lahore High Court seeking permission to proceed with the said part heard murder case and the case was adjourned to 13-6-1994 awaiting the reply of the High Court. Later on he without awaiting for the reply of the High Court, himself, assumed the jurisdiction of the said case on 10-7-1994 and started trial of the case. For this, Mr. Muhammad Siddique Girwa, relied upon the transfer of cases order, dated 26-5-1994 passed by the learned District and Sessions Judge, Lahore in which the said District and Sessions Judge had transferred all the cases including this part heard murder case, previously pending in the Court of Mr. Khadim Hussain Malik, to his Court. The transferee learned Additional Sessions Judge also relied upon the judgment of this Court titled Mushtaq Ahmed v. The State 1982 PCr.LJ 298.
3. The petitioner, through this petition, has challenged the entrustment order, dated 26-5-1994, passed by the learned District and Sessions Judge, Lahore transferring all the cases including this part heard murder case, previously pending in the Court of Mr. Khadim Hussain Malik, to the Court of another Additional Sessions Judge, Mr. Muhammad Siddique Girwa. The petitioner has also challenged the validity of this murder trial being conducted by Mr. Muhammad Siddique Girwa, on the ground that as this case was partly heard, only a successor of Mr. Khadim Hussain Malik, the learned Additional Sessions Judge, could have continued hearing of the case. The learned counsel for the petitioner has asserted that no one was appointed in place of Mr. Khadim Hussain Malik; hence a de novo trial is called for in this case, and an Additional Sessions Judge appointed against an existing vacancy and not as a substitute of the outgoing Additional Sessions Judge, cannot carry on hearing of the part heard case, without proper entrustment by the competent authority.
4. I have heard the learned counsel for the petitioner at full length as well as Mr. Shabbar Raza Rizvi, learned Additional Advocate-General, and have also gone through the relevant provisions of law and precedent cited by them.
5. This writ petition raises very substantial questions of law with regard to interpretation of sections 193/350/526/528, Cr.P.C. The legal points which arises are:--
(i) Who is a successor under section 350, Cr.P.C.?
(ii) What power has the learned Sessions Judge got to re-entrust the cases when no successor is appointed in place of an outgoing Additional Sessions Judge?
(iii) Whether the learned Sessions Judge could himself re-entrust the part heard case pending in the Court of an Additional Sessions Judge, who is transferred and in whose place no substitute is posted?
6. The only reported case cited before me on the point is Mushtaq Ahmed v. The State 1982 PCr.LJ
298. That case also deals with the related issues. In that case the learned Judge upheld the order of the learned Sessions Judge entrusting the cases including the part heard cases, pending in the Court of an Additional Sessions Judge, who was transferred and in whose place no successor was appointed to another Additional Sessions Judge. The learned Judge in that case relied upon sections 193/350/528, Cr.P.C. He held that:-- "The power of entrusting the cases or appeals to the Additional Sessions Judge is derived from the provisions of section 193(2) of the Code of Criminal Procedure. It will be of interest to mention here that in whole of the Code of Criminal Procedure, no independent existence of the office of the Additional Sessions Judge to act as judicial officer in any case unless transferred or entrusted to him exists. The natural corollary, therefore, will be that Additional Sessions Judges are appointed to cope with the work of the Sessions Division and are placed at the disposal of the Sessions Judge who can by provisions of section 193(2), Cr.P.C. Distribute and entrust the work to them. Obviously the Additional Sessions Judge by virtue of posting orders does not derive powers for exercising jurisdiction or holding trial of any case merely by virtue of his posting in a District whether his appointment is afresh or he succeeds somebody on transfer. As the powers of the Additional Sessions Judge to hold trials and hear appeals and other matters do not flow from the order of his posting, he cannot take up any case by himself. The case shall have to be entrusted to him by the Sessions Judge. The Sessions Judge, therefore, will always be in a position to redistribute the work whenever a situation arises and the entrustment of any of the cases from one Additional Sessions Judge to another will be deemed to mean that the Additional Sessions Judge to whom the case has been entrusted is a `successor' of the one who was trying the case earlier. This power continues even after the amendment in section 350 of the Code of Criminal Procedure regarding cases which are under-trial and have been partly heard. Of course, the power of redistribution is not to be exercised by the Sessions Judge unless the Additional Sessions Judge holds a post and is not transferred or promoted or ceases to hold office in any other manner."
7. After careful reading of the cited reference of this Court, I have to respectfully differ with the said judgment because it does not at all refer to or discuss section 526 of the Cr.P.C.
8. The sections which are relevant to the points in issue are 193(ii), 350(i), 526(1)(e)(ii) and 528(1-A).
These sections are reproduced here for ready reference:- 193.--- (1) ......................................................................................
(2) Additional Sessions Judges and Assistant Sessions Judges shall try such cases only as the (Provincial Government) by general or special order may direct them to try, or as the Sessions Judge of the division, by general or special order, may make over to them for trial.
350(1) Whenever any Sessions Judge or Magistrate after having heard and recorded the whole or any part of the evidence in an inquiry or a trial ceases to exercise jurisdiction therein, and is succeeded by another Sessions Judge or Magistrate who has and who exercises such jurisdiction, the Sessions Judge or Magistrate so succeeding may act on the evidence so recorded by his predecessor, or partly recorded by his predecessor and partly recorded by himself; or he may re-examine the witnesses and recommence the inquiry or trial: (2)
(3)
526(1) Whenever it is made to appear to the High Court--
(a) ..................................................................................................
(b) ..................................................................................................
(c) ..................................................................................................
(d) ..................................................................................................
(e) that such an order is expedient for the ends of justice, or is required by any provision of this Code, it may order; (i)
(ii) that any particular case or appeal, or class of cases or appeals, be transferred from a criminal Court subordinate to its authority to any other such criminal Court of equal or superior jurisdiction.
528(1).............................................................................................
(1-A) At any time before the trial of the case or the hearing of the appeal has commenced before the Additional Sessions Judge may recall any case or appeal which he has made over to any Additional Sessions Judge."
9. It is obvious from a plain reading of these sections that section 193 deals with the original entrustment in the first place. Section 528 deals with any transfer before the commencement of the trial. Section 350 deals with the cases where a 'successor' is appointed. In this writ petition as stated in the facts mentioned above, the original entrustment of this murder case under section 193(2) was made by the learned District and Sessions Judge, Lahore to Mr. Khadim Hussain Malik, Additional Sessions Judge, and that exhausted the power of the learned District and Sessions Judge under section 193(2). Section 528 only empowers the learned Sessions Judge to recall any case or appeal which he has made over to any Additional Sessions Judge at any time before the trial of the case or the hearing of the appeal has commenced. The said section further empowers the transferring authority either himself to hear the case or the appeal which has been recalled or withdrawn or make it over to another Court for trial or hearing as the case may be.
10. In the present case the hearing had already commenced and the murder case was left part heard by Mr. Khadim Hussain Malik, Additional Sessions Judge. I am afraid that in the Present case, the learned Sessions Judge could not have exercised any authority under section 528(1-A) to transfer the part heard cases to another Additional Sessions Judge. As far as section 350 is concerned, it does not appear relevant in this case, because Muhammad Siddique Girwa, learned Additional Sessions Judge to whom the part heard murder case had been transferred, was not posted as a successor of Khadim Hussain Malik by the High Court, who is the only competent authority to do SO.
11. The relevant law on this point is in section 526, Cr.P.C. Which was not discussed in the abovesaid precedent case. I would not respectfully agree with the learned Judge, who gave precedent judgment that the Sessions Judge could transfer even the part heard case to an Additional Sessions Judge posted against an existing vacancy and not as a successor of the outgoing Additional Sessions Judge. This is clearly beyond the power of Sessions Judge under section 528(1- A), Cr.P.C. Under section 526(1)(e)(ii), it is only the High Court which can transfer the part heard case from one Additional Sessions Judge to another Additional Sessions Judge when no successor is duly posted by the Lahore High Court for the outgoing Additional Sessions Judge. The High Court, can exercise its power suo motu also under section 526. I, therefore, reach the confirm conclusion that the order of the learned District and Sessions Judge, dated 26-5-1994 was without lawful authority so far as it relates to the entrustment/transfer of the abovesaid case.
12. In cases where no successor is appointed, the learned Sessions Judges should eschew transferring/entrusting part heard cases of their own as no such power vests in them under the law. They should invariably make reference to the High Court to get orders of transfer/entrustment of part heard cases in exercise of its suo motu powers under section 526(1)(e)(ii).
13. It is a trite law that all rules of procedure are meant to advance and accelerate the process of justice and are not meant to thwart or hinder the process of Court. Keeping in view this principle the error committed by the learned Sessions Judge in entrustment/transfer of this case is an objection of merely technical nature which does not "materially affect" the trial of the case on merits. It will, at the most, be a curable irregularity within the meaning of section 537, Cr.P.C. This writ petition, therefore, technically succeeds. I suo motu hereby entrust/transfer this case to the Court of Mr. Muhammad Siddique Girwa, Additional Sessions Judge, Lahore for trial. He may continue the trial of this case without prejudice to the right of the accused to pursue his transfer application bearing Criminal Miscellaneous No,241/T of 1994 already pending in this Court. This will be taken up separately. Order accordingly.